21 December, 2013

People's Internet browsing habits can be incredibly personal, especially when it relates to certain materials of an adult nature. As such pornographic materials have been used to coerce people into paying for alleged cases of copyright infringement, mostly because of the potentially embarrassing effect a publicly accessible litigation process would have on those individuals. Recent instances have been noted in Australia and more prominently in the US by Prenda Law (something which will be discussed on this blog very soon in more depth). Although seemingly a much rarer vehicle for short-term profits for some entities, recent times have shown an increase in behavior deemed as "copyright trolling"; much akin to patent trolling discussed on this blog prior.

The Germans are the current recipient of such claims, with thousands of Germans being targeted as alleged copyright infringers after visiting the streaming website RedTube (no affiliation with the more known YouTube I'm sure). With numbers having been reported as high as 30,000 Germans as recipients of these letters, the potential value sought by the firm U+C would be over 7,5 million euros.

As such web streaming has been deemed to not infringe copyright in many jurisdictions due to no copy being created in the process of streaming; however U+C argue that"...watching videos on sites such as Redtube can qualify as a proliferation of copyrighted material as a small copy of the file is created in the memory of the viewer’s computer", thus making a copy of the work and potentially infringing copyright. Commenting on behalf of RedTube Alex Taylor, their Vice-President. stated that "RedTube stands by its firm opinion that these letters are completely unfounded and that they violate the rights of those who received it in a very serious manner".

Many are unsure of how to pay the pizza delivery man, if some videos are any indication

Alongside the potential precedent that could be set by the case should it be taken further, potentially causing web streaming to be deemed to infringe copyright, the issue of whether this does infringe the privacy of German citizens can be raised. As stated by Christian Solmecke for the Guardian "...there was not only no legal basis for the fines, but that it was possible that the law firm behind the letters may have broken the law...[and] [i]t is hard to imagine how the IP addresses of the users could have been obtained on a legal basis". More notably this could be an infringement of the right to a private and family life under the European Convention on Human Rights, in addition to any specific German legislation.

The issue of the temporary copies has been argued by Tim Worstall as being potentially correct, stating that "If the original streaming site hasn’t been paying the right royalties it is possible that the viewers owe them. for that idea of a copy existing in the browser would not be, in at least some jurisdictions, be rejected out of hand". This writer for one can see the potential argument as being valid given the right line of argument or set of facts; however due to the current precedent surrounding web streaming it would be unlikely for it to be deemed a form of infringement.

As it stands the matter has not been taken to court, but due to the sheer visibility of the matter it seems unlikely it would avoid litigation entirely, assuming U+C have belief in their argument and are not simply trying to use peoples' embarrassment as a way to make a quick buck. Whether this will go further will remain to be seen, but this writer for one would love for U+C's argument to be tested in court.

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The Author

Jani Ihalainen (LL.B. (Hons), LL.M.), is a law graduate with a passion for all that is intellectual property law, residing in London, UK.
He also currently works for an international law firm in the City of London.

The name of a company, much like the names of people, carries significant weight in the company's identity in the mind of the consumer a...

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